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Qazi Mohammad Bashir UddIn and anr. Vs. Haji Sheikh Waheed UddIn Sahib and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All600
AppellantQazi Mohammad Bashir UddIn and anr.
RespondentHaji Sheikh Waheed UddIn Sahib and ors.
Excerpt:
- - it was contended by the defendants that the suit being for redemption of a part of the property it was not maintainable and that it was time-barred as well as barred by sections 54 and 55, court of wards act......case was that the integrity of the mortgage was broken on account of the purchase of 4/7ths share of abdul halim and abdul wahid by defendants 1, 2 and 7. the plaintiff therefore prayed for redemption of his proportionate share or in the alternative for redemption of the whole of the mortgaged property. the mortgage was in favour of blahi bux. all his heirs were impleaded in the suit. the property of mt. aziz fatirna, minor, who was one of the heirs, is under the management of the court of wards. no notice has been given to the collector who is the manager of the court of wards nor was the suit brought satanist her in the name of the collector. the collector was brought on the record but after the expiry of the period of limitation. it was contended by the defendants that the suit.....
Judgment:

Ganga Nath, J.

1. This is a plaintiffs' appeal and arises out of a suit brought by the plaintiffs against the defendants-respondents for redemption of a usufructuary mortgage dated 17th June 1873. The mortgage was executed by Abdul Bari, the predecessor-in-interest of the plaintiffs. Abdul Bari had three sons, Abdul Hadi, Abdul Wahid and Abdul Halim, and one daughter Mt. Sharifunnissa. The plaintiffs are the heirs of Abdul Hadi and Mt. Sharifunnissa and their ahare is 3/7ths. Abdul Halim and Abdul Wahid have sold their 4/7ths share to defendants 1, 2 and 7. The plaintiffs' case was that the integrity of the mortgage was broken on account of the purchase of 4/7ths share of Abdul Halim and Abdul Wahid by defendants 1, 2 and 7. The plaintiff therefore prayed for redemption of his proportionate share or in the alternative for redemption of the whole of the mortgaged property. The mortgage was in favour of Blahi Bux. All his heirs were impleaded in the suit. The property of Mt. Aziz Fatirna, minor, who was one of the heirs, is under the management of the Court of Wards. No notice has been given to the Collector who is the manager of the Court of Wards nor was the suit brought satanist her in the name of the Collector. The Collector was brought on the record but after the expiry of the period of limitation. It was contended by the defendants that the suit being for redemption of a part of the property it was not maintainable and that it was time-barred as well as barred by Sections 54 and 55, Court of Wards Act. Both the lower Courts found in favour of the defendant and dismissed the suit. The point that the integrity of the mortgage has broken has not been pressed seriously before us. In order that the integrity of the mortgage may be broken it is necessary that all the mortgagees should have purchased a share in the mortgaged property. In this case only three defendants, i.e. defendants 1, 2 and 7 out of several defendants have purchased a 4/7ths share. Section 60 lays down:

Nothing in this Section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, is whole or in part, the share of a mortgagor.

2. In the face of these plain words of the Section, the plaintiffs had no right to bring; a suit for redemption of their share only. It is not disputed that no notice has been given to the Collector who is the manager of the Court of Wards, and under whose management the property of Mt. Aziz. Fatima, minor, is. It is also not disputed that the Collector was impleaded after the period of limitation had expired. Under Section 54, Court of Wards Act:

No suit relating to the person or property of any ward shall be instituted in any Civil Court until the expiration of two months after notice in writing has been delivered to or left at the office of the' Collector or other person in charge of the property.

3. Under Section 55:

No ward shall sue or be sued, nor shall any proceeding be taken in the Civil Court otherwise than by and in the name of the Collector in charge of the property or such other person as the Court of. Wards may appoint in this behalf.

4. The provisions of these Sections have not been complied with, and the suit therefore must be dismissed as against Mt. Aziz Fatima. The suit not being maintainable against Mt. Aziz Fatima, the question arises as to whether it is open to the plain, tiffs to claim a decree for redemption of the remaining property by payment of the whole of the mortgage money. It has been contended on behalf of the plaintiffs that they are willing to pay the whole mortgage money to the rest of the mortgagees against whom the suit is maintainable. It cannot be so done, because unless the whole of the mortgage money is paid to all the mortgagees, the whole money due under the mortgage cannot be deemed to have been paid. In this case, the suit, as already stated, is not maintainable against Mt. Aziz Fatima, and her share in the mortgage money cannot be paid to her. The other difficulty in the way of the plaintiffs is that Mt. Aziz Fatima is entitled to keep the whole property as security for whatever money may be due to her. It being so, a suit for redemption of a portion of the property cannot be maintained. There is no force in the appeal. The appeal is accordingly dismissed with costs.


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